Penn State Law holds moot on NFL case

September 7, 2010

Professors take "hot seat"

Generations of law students have been challenged by the “Socratic method” of persistent questioning from their professors, but it was two law professors who were questioned by federal judges on Friday, November 20. Students took a break from the proverbial “hot seat” to hear the mooting of American Needle v. NFL, an antitrust case argued before the United States Supreme Court on January 13. The event can be viewed here.

Penn State sports law scholar and professor Stephen Ross “represented” American Needle, Inc. Arguing on behalf of the NFL was Gary R. Roberts, Dean of the Indiana University School of Law in Indianapolis, an internationally recognized sports law scholar who was once counsel to the NFL. Both advocates have published on sports league antitrust matters. Professor Ross appeared before the House Judiciary Committee to discuss courts and competition policy on January 20.

The Hon. D. Brooks Smith’76 and the Hon. Dolores Korman Sloviter,both of the United States Court of Appeals for the Third Circuit, and the Hon. Richard Cudahy from the Seventh Circuit served as guest judges. Judge Cudahy authored an opinion in 1995 on an antitrust lawsuit about NBA television rights.

Questions pulled the professors to a wide range of topics, including whether sports leagues should be thought of as a “single entity” like a corporation or as an agreement among separate club owners, whether licensing of property is essential for a sports entity to exist, and whether the Chicago Bears could be a viable team without the NFL. Judges questioned how the existence of the NFL enhances the value of each team’s logo.

Observing the arguments in the Lewis Katz Building were Jeff Carey, general counsel for American Needle who filed the initial lawsuit in the case, and Glen Nager of Jones Day, who argued the case before the Court. Attorneys from Covington & Burling representing the NFL were invited to join via live webcast.

No ordinary moot court

While the judges refrained from discussing who should win the case, they had high praise for the experience. It was “no ordinary moot court,” said Judge Smith, because the advocates were more experienced than student moot court participants.

“The arguments were excellent and actually caused me to rethink the case a bit from the mindset I had when I entered the oral argument today.”

Oral argument goes beyond simply laying out one’s presentation, explained Judge Sloviter. She encouraged future lawyers in the room to view questions from the bench as an opportunity. “The questions will tell you what bothers the judges,” she said. “You’re there to persuade them.”

Attorney Nager called the event “extremely helpful” and said that he took six pages of notes. “An advocate always immerses himself in the facts of the case,” he said, pointing out that he appreciates perspective on the case from people who are not as immersed in it as he is.

At issue was whether the NFL acts as a single entity for Sherman Act purposes when all thirty-two teams work together to license apparel manufacturing. The suit began when the license of American Needle, Inc. was terminated by the NFL in favor of the league’s exclusive deal with Reebok.

Dean Roberts argued that the NFL is a single entity and thus internal league rules do not constitute agreements in restraint of trade in violation of the Sherman Act. Professor Ross argued that NFL’s policies about licensing trademarked logos reflected an agreement among 32 separate, self-interest owners, so it could constitute a conspiracy to restrain trade.